N.Y. GMU. LAW § 50-h : NY Code - Section 50-H: Examination of claims

Search N.Y. GMU. LAW § 50-h : NY Code - Section 50-H: Examination of claims

1. Wherever a notice of claim is filed
  against a city, county, town, village, fire district, ambulance district
  or school district the  city,  county,  town,  village,  fire  district,
  ambulance  district or school district shall have the right to demand an
  examination of the claimant relative to the occurrence and extent of the
  injuries or damages for which claim is made, which examination shall  be
  upon  oral  questions  unless  the  parties  otherwise stipulate and may
  include a physical examination of  the  claimant  by  a  duly  qualified
  physician. If the party to be examined desires, he or she is entitled to
  have  such  examination  in  the  presence  of  his  or her own personal
  physician and such relative or other person as  he  or  she  may  elect.
  Exercise  of  the right to demand a physical examination of the claimant
  as provided in this section shall in no way affect the right of a  city,
  county,  town,  village,  fire  district,  ambulance  district or school
  district in a subsequent action brought  upon  the  claim  to  demand  a
  physical examination of the plaintiff pursuant to statute or court rule.
    2.  The  demand for examination as provided in subdivision one of this
  section shall be made by the chief executive officer or, where there  is
  no  such  officer,  by  the  chairman of the governing body of the city,
  county, town, village, fire district  or  school  district  or  by  such
  officer, agent or employee as may be designated by him for that purpose.
  The  demand  shall  be  in  writing and shall be served personally or by
  registered or certified mail upon the claimant unless  the  claimant  is
  represented  by  an  attorney,  when it shall be served personally or by
  mail upon his attorney. The demand shall give reasonable notice  of  the
  examination. It shall state the person before whom the examination is to
  be  held,  the time, place and subject matter thereof and, if a physical
  examination is to be required, it  shall  so  state.  If  the  place  of
  examination  is located outside the municipality against which the claim
  is made, the claimant may demand, within ten days of such service,  that
  the  examination  be  held  at a location within such municipality. Such
  location shall be  determined  by  the  municipality.    If  a  physical
  examination is to be required and there is no appropriate place for such
  an  examination within the municipality, such examination shall be given
  at a location as close to such municipality as  practicable.  No  demand
  for  examination shall be effective against the claimant for any purpose
  unless it shall be served as provided in this subdivision within  ninety
  days from the date of filing of the notice of claim.
    3.  In  any  examination  required  pursuant to the provisions of this
  section the claimant shall have the right to be represented by  counsel.
  The examination shall be conducted upon oath or affirmation. The officer
  or person before whom the examination is had shall take down or cause to
  be  taken down every question and answer unless the parties consent that
  only the substance of the testimony be inserted. The testimony so taken,
  together with the report of the examining  physician  where  a  physical
  examination is required, shall constitute the record of the examination.
  The  transcript  of the record of an examination shall not be subject to
  or available for public inspection, except upon court  order  upon  good
  cause shown, but shall be furnished to the claimant or his attorney upon
  request.
    4.  A  transcript of the testimony taken at an examination pursuant to
  the provisions of this section may be read in evidence by either  party,
  in  an  action  founded  upon  the claim in connection with which it was
  taken, at the trial thereof  or  upon  assessment  of  damages  or  upon
  motion.  In an action by an executor or administrator to recover damages
  for a wrongful act, neglect or default by which a decedent's  death  was
  caused,  the testimony of such decedent taken pursuant to the provisions

  of this section in respect of such wrongful act, neglect or default  may
  be read in evidence.
    5.  Where  a  demand  for  examination  has been served as provided in
  subdivision two of this section no action shall be commenced against the
  city, county, town, village, fire district or  school  district  against
  which  the claim is made unless the claimant has duly complied with such
  demand for examination, which compliance shall be  in  addition  to  the
  requirements  of section fifty-e of this chapter. If such examination is
  not conducted within ninety days of service of the demand, the  claimant
  may commence the action. The action, however, may not be commenced until
  compliance  with  the  demand  for  examination if the claimant fails to
  appear at the hearing or requests an adjournment or postponement  beyond
  the  ninety  day  period.  If  the  claimant  requests an adjournment or
  postponement beyond the ninety  day  period,  the  city,  county,  town,
  village,  fire  district or school district shall reschedule the hearing
  for the earliest possible date available.